Bangalore District Court
Sri.Dalmuni vs S/O Dasappa on 27 October, 2016
IN THE COURT OF THE LXII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU
Dated this the 27th day of October, 2016
PRESENT
************
Sri Parameshwara Prasanna,
B.A,L.L.B.,
LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
Crl. Appeal No.1154/2015
APPELLANT/ Sri.Dalmuni,
ACCUSED : S/o Dasappa,
Canteen Attendant.A
Staff No.TR10188
ISRO Telemetry
Tracking and Command Network
(IS TRAC), Plot No.12 85 13,
3rd Main, 2nd Phase,
Peenya Industrial Area
Bengaluru-560 058.
(By Sri K.N.Channappa, Advocate)
-Vs-
RESPONDENT/ Sri.S.C.Anand,
COMPLAINANT: S/oLate Chenna Gowda
Aged about 42 years
R/a.No.C-218/1
1st Stage, IV Cross,
Peenya Industrial Estate
Peenya, Bengaluru-560 058.
(By Sri.B.Sambashiva Reddy- Advocate)
2 Crl.Appeal.No.1154/2015
JUDGMENT
This criminal appeal is filed under Section 374 (3) of Cr.P.C by the accused against the Judgment dated 06.07.2015 passed by the learned 18th Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.17669/2013 wherein the said trial Court convicted the appellant for the offence punishable U/s.138 of N.I.Act and sentenced him to pay fine of Rs.1,10,000/- and in default of payment of fine to undergo S.I for 6 months and out of fine amount a sum of Rs.1,00,000/- has been ordered to be paid as compensation to the respondent/complainant and balance amount of Rs.10,000/- ordered to be defrayed to the State for the expenses incurred in the prosecution.
2. For the sake of convenience, the parties are referred to as per their litigative status before the trial court. The appellant is the accused and the respondent is the complainant as per their original ranks before trial Court.
3. The Respondent/complainant filed the private complaint against the appellant before the trial Court for the offence punishable under Section 138 of N.I.Act. 3 Crl.Appeal.No.1154/2015
4. Brief facts of the case as per the complaint is that:-
The accused is known to complainant. On 2.2.2013 accused obtained a loan of Rs.1,00,000/- from the complainant by agreeing to repay the same within one month and in discharge of the said legally enforceable debt, the accused issued a cheque dt.14.03.13 for Rs.1,00,000/- bearing cheque no.322318 drawn on State Bank of India, Airport Road branch, Bangaloreto the complainant. When the complainant presented the said cheque as per bankers memo dt.18.3.2013, it was returned unpaid with an endorsement "Funds Insufficient". Therefore, the complainant issued legal notice dt.9.4.2013 calling upon the accused to pay the cheque amount. The notice sent through certificate of posting was duly served on the accused, whereas the notice sent through registered post returned with an endorsement 'refused' not claimed". Hence the complainant constrained to file complaint against the accused for the offence punishable under Section 138 of Negotiable Instrument Act.4 Crl.Appeal.No.1154/2015
5. Based on the said complaint, cognizance was taken, sworn statement of the complainant was recorded and the case was registered against the accused in C.C. No.17669/2013 for the offence punishable under Section 138 of N.I. Act.
6. Upon service of summons, accused appeared and plea of the accused was recorded and the accused pleaded not guilty.
7. During the course of the trial, in order to prove the case of the complainant, complainant got examined himself as PW-1 and got marked Ex.P.1 to Ex.P.6. When accused was examined under Section 313 of Cr.P.C. He denied some of the incriminating circumstances appearing in evidence against him,but he admitted that he borrowed Rs. 20000/- from the complainant. The accused has not led any defence evidence.
8. Subsequent to recording of 313 Statement, the accused and his counsel remained absent on all consecutive hearing dates and as such the trial court taken the arguments of defence side as nil and on hearing of the arguments of the complainant counsel the trial court convicted the accused for the 5 Crl.Appeal.No.1154/2015 offence punishable under Section 138 of N.I. Act and sentenced him as afore said. Being aggrieved by the said conviction and sentence of the trial court, the appellant/accused has filed this criminal appeal by challenging the judgment on the following grounds;
1. The trial court with out proper application of mind passed the judgment dt.6.7.15 in C.C. No.17669/2013.
2. The trail court has not considered the documents and has erroneously pass the impugned judgment resulting in miscarriage of justice to the appellant.
3. The trial court has wrongly come to the conclusion that the cheque in question is issued in discharge of the legally enforceable liability.
4. The trial court has erred in coming to the conclusion that the accused/appellant has not produced the materials in support of his case.
5. The trial court has erred in coming to the conclusion that accused/appellant has admitted his liability towards complainant/respondent.
6. The basic essential ingredients constituting the commission of offence which is made penal under the 6 Crl.Appeal.No.1154/2015 relevant provisions of the Negotiable Instrument Act are found lacking in the averments made in the complaint, hence the Criminal Complainant is liable to be dismissed and accused are liable to be acquitted for the offence under Section 138 of N.I. Act 1881. Inter alia on these grounds, the appellant sought for allowing of this criminal appeal.
9. Along with appeal memo, the appellant has filed I.A. No.1 under Section 5 of Limitation Act for condoning the delay of 65 days in filing this appeal. In the affidavit annexed to I.A. No.1, it is stated that as the accused was busy with his work and on account of some personal problems in his family he could not prefer the appeal within time .The counsel for respondent filed objection to I.A. No.1. It is the settled principle of law that the word 'sufficient cause' contemplated under 5 of Limitation Act to be construed liberally. Since, sufficient cause is shown for condoning the delay, I.A. No.1 is allowed. Since, despite of sufficient opportunity, the counsel for appellant has not addressed the arguments; this Court has taken the argument of 7 Crl.Appeal.No.1154/2015 appellant as nil on 4.10.2016 .Heard argument of Appellant's counsel.
10. I have carefully perused the entire lower court records.
11. Under the facts and circumstances of the case, the following points arise for the consideration of this Court:
1. Whether the Judgment, conviction and order of sentence passed by the learned 18th ACMM, Bengaluru in C.C.No.17669/2013 dated 6.7.2015 is erroneous and illegal?
2. Whether there is any necessity for interfering with the aforesaid impugned Judgment of the trial Court?
3. What Order?
12. My findings to the above points are as under:-
POINT Nos.1 and 2 :- In the Negative POINT No.3 :- As per final order, for the following:-
REASONS
13. POINT Nos.1 and 2:- As the points 1 and 2 are inter-related, they are taken together for discussions to avoid repetitions.
8 Crl.Appeal.No.1154/2015
14. The case of the complainant/accused in brief is that the accused on 2.2.2013 obtained hand loan of Rs.1,00,000/- from the complainant by agreeing to repay the same within one month and in discharge of the said legally enforceable debt, the accused issued a cheque dt.14.03.13 for Rs.1,00,000/- bearing cheque no.322318 drawn on State Bank of India, Airport Road branch, Bangalore. When the complainant presented the said cheque as per bankers memo dt.18.3.2013, it was returned unpaid with an endorsement "Funds Insufficient". Therefore, the complainant issued legal notice dt.9.4.2013 calling upon the accused to pay the cheque amount. The notice sent through certificate of posting was duly served on the accused, whereas the notice sent through registered post returned with an endorsement 'refunds, not claimed". Hence, according to the complainant he has been constrained to file the complaint against the accused for the offence punishable under Section 138 of N.I. Act.
15. In order to substantiate the case of the complainant, the complainant got examined himself as Pw-1 and in the 9 Crl.Appeal.No.1154/2015 affidavit filed in lieu of examination in chief he has reiterated the averments made in the complaint. The documents produced by the complainant were marked before the Trial Court as follows;
1. Cheque No.322318 dt.14.03.2013 for Rs.1,00,000/- - Ex.P.1
2. Signature of the accused on Ex.P.1 - Ex.P1(a)
3. Bank Endorsement - Ex.P.2
4. Office copy of demand notice - Ex.P.3
5. Postal receipt - Ex.P.4
6. Two postal covers - Ex.P.5 and Ex.P.6
16. The lower Court records revels that on 31.01.2015 the complainant filed his affidavit in lieu of examination-in-chief and further examined in chief as PW-1 and got marked Ex.P.1 to Ex.P.6 and since the accused and his Advocate remained absent, case was posted for cross-examination of PW-1 to 25.2.2015 and since the accused and his counsel remained absent, the cross-examination taken as nil.
17. During the examination of accused under Section 313 of Cr.P.C. when substance of acquisition was recorded, the accused has admitted that he borrowed a sum of RS.20,000/- 10 Crl.Appeal.No.1154/2015 from the complainant and he has not claimed to have repaid the said amount to the complainant. More over the accused has not denied issuance of Cheque while answering question No2 put by the court to him in his statement recorded under section 313 of C.R.PC. Since, despite of sufficient opportunity PW-1 is not cross-examined by the accused, the documentary and oral evidence of the complainant remains unchallenged/un-rebutted.
18. The demand notice issued to the accused returned with postal endorsement refused/intimation delivered/unclaimed/as deemed served under law and as per Section 27 of general Clause Act there is presumption in favour of the complainant regarding service of notice sent through registered post.
19. There is a presumption under Section 139 of N.I. Act infavour of the holder of the cheque that cheque was drawn for discharge of debt or liability. In the case of Rangappa V/s. Mohan 2010 Cr.L.J. 2878, the Hon'ble Apex Court has held that:
"Once the execution of Negotiable Instrument is either proved or admitted, then the Court has to 11 Crl.Appeal.No.1154/2015 draw presumption available under Section 139 of N.I. Act to the effect that the Negotiable Instrument/Cheque has been drawn for valid consideration"
20. In this case the accused neither cross-examined the complainant or lead defence evidence and as such the accused has failed to rebut the presumption available to the complainant under Section 139 of and under section118 of N.I. Act. The evidence of PW-1, Ex.P.1 to Ex.P.6 coupled with presumption under law establishes that the Ex.P.1 cheque was issued towards discharge of legally recoverable debt and the appellant/accused has not rebutted the said presumption. Considering the oral and documentary evidence the Court below has rightly drawn the presumption under Section 139 of N.I. Act and come to the conclusion that the accused has committed the offence. The complainant has complied with all statutory requirement under Section 138 of N.I. Act and therefore on reconsidering the oral and documentary evidence on record the condition urged in the memorandum of appeal cannot be accepted. Therefore, the impugned judgment of the Trial Court does not calls for any 12 Crl.Appeal.No.1154/2015 interference. Accordingly, I answer point No.1 and 2 in the negative.
21. POINT NO.3: - In view of the above discussions and my findings on point No.1 and 2, I proceed to pass the following:
ORDER The criminal appeal filed by the appellant/ accused under Sec.374 of Cr.P.C. is here by dismissed.
The Judgment, conviction and
sentence passed by the learned 18th
Addl. Chief Metropolitan Magistrate,
Bengaluru dated 06.07.2015 in
C.C.No.17669/2013 is hereby
confirmed.
Send the copy of the Judgment along
with records to the Lower Court
forthwith.
(Dictated to the Stenographer, transcribed and typed by her, and then corrected and pronounced by me in the open court on this the 27th day of October, 2016).
(Parameshwar Prasanna.B.) LXII Addl. C.C. & Sessions Judge, BANGALORE CITY.13 Crl.Appeal.No.1154/2015
14 Crl.Appeal.No.1154/2015